HKSAR v. ABDEL HAK NAAZ

HCMA833/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 833 OF 2003

(ON APPEAL FROM KTCC 4488 OF 2003)

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J U D G M E N T

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1. The appellant was charged with one count of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115 of the Laws of Hong Kong. He pleaded guilty and was sentenced to a term of 18 months' imprisonment. He sought to appeal against the sentence. Having heard his representations and read the relevant papers, I had dismissed his appeal. I now state the reasons.

2. The particulars of offence stated that Abdel Hak Naaz was charged that he, on 8 July 2003 in Hong Kong, being a person in respect of whom a deportation order was in force, was in Hong Kong in contravention of the order, namely that a deportation order dated 19 August 1996.

3. The appellant admitted the facts before the learned Magistrate Mr D.I. Thomas. What had transpired was that on 8 July 2003, the appellant entered Hong Kong from the Mainland at the Lo Wu Control Point. He presented his passport, which bore the name as stated in the present charge, to the Immigration Officer. Being suspicious of his status, the officer detained the appellant and made further investigation. It was then revealed that the appellant had previously come to Hong Kong in 1995 under a different name. He was convicted of the relevant offence and later deported back to Pakistan in November 1996 under the deportation order dated 19 August 1996. The deportation order was not limited in time and the appellant was clearly aware of this particular order. Indeed, he had made admissions in that regard under caution.

4. The investigating immigration officers had also asked the appellant about the Pakistan passport that he had presented at the Lo Wu Control Point and about the four other passports that were found in the possession of the appellant at the time of his arrest. The appellant said that in order to earn money in Hong Kong, he had obtained all these passports and had used them to travel in and out of Hong Kong previously.

5. The appellant had three previous criminal records in Hong Kong, those offences were committed in 1994, 1996 and 2000. They were all related to immigration offences. On the first occasion, he was given a small fine, he next received a short term of imprisonment, then in 2000, 12 months were imposed for the offence of using a false instrument in breach of deportation order.

6. Yet the appellant once again returned to Hong Kong illegally. I entirely agree with the learned magistrate when he said that this was a flagrant flouting of the law and the order which was made directly against the appellant. Having analysed a number of authorities in this subject, the Magistrate found that 18 months was appropriate.

7. This morning the appellant submitted to this court that his family was in difficulties. He presented a number of documents and photographs, trying to show this court that his family was in serious difficulties and that both his wife and his young son were suffering from poor health. The appellant also said that his father had passed away recently and he was worried about his family as he had not been able to pay rent for his residence for some time. One of the documents submitted was an application by the landlord to the court to evict the family of the appellant. The contents, however, indicated that the appellant or his family had not been paying rent since March this year. The defendant was arrested on 8 July for this offence. Hence, he had left his family with full knowledge of the application of the eviction order.

8. This was not the first time the appellant had breached the deportation order. He had returned to Hong Kong previously. If the present sentence would indeed cause his family problems, the appellant had only himself to blame. He should know about the consequence of him being caught again but he still took the risk. The sentence was entirely appropriate. This appeal has no merit and must be dismissed.